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The Bush Administration eliminated protection of rivers in coal mining regions by changing the mountaintop mining rule last week.

Pro Publica reported:

Ignoring its own scientific study, the Environmental Protection
Agency said on Tuesday that dumping debris from coal mining into
mountain streams doesn't conflict with the Clean Water Act -- a
reversal that clears the way for a new Bush administration rule that
critics call a gift to mining interests.

In its waning days, the administration is rushing to approve scores of rule changes
to leave its stamp on government. The controversy over environmental
damage from mountaintop mining -- blasting off the tops of mountains to
more easily get at coal -- has raged for years, with environmentalists
and the EPA at odds with the industry about the dangers to water
quality from dumping debris nearby.

The new rule would make it
easier for mining companies to dispose leftover rock and dirt near or
on top of streams. EPA approval was needed before the Department of the
Interior, under Secretary Dirk Kempthorne, could finalize the rule
before Bush leaves office next month.

Why EPA changed its stance remains a mystery. The agency declined to explain beyond releasing a letter (PDF) from Administrator Stephen Johnson to Kempthorne asserting that
"nothing in the regulation is inconsistent with the provisions of the
Clean Water Act."

"With this about-face, the Bush administration
has hammered one more nail into the coffin of a lot of these
Appalachian communities," said Vernon Haltom, a co-director of Coal
River Mountain Watch, a West Virginia-based environmental group. "The
water here is already polluted, homes are threatened by flooding and we
have regulatory agencies that look the other way and pretend we don't
exist."

At least twice previously, EPA has said discarding
debris into streams can violate the Clean Water Act or kill wildlife.
It came to this conclusion once in a 2006 study and again in a legal
filing. The study and the brief were cited in comments (PDF) opposing the Interior rule that were submitted to EPA by a group of environmental lawyers.

The
EPA study says water tested downstream from mining debris had high
levels of hazardous chemicals constituting a "violation of water
quality standards" in the Clean Water Act.

EPA's legal brief,
submitted in conjunction with several other federal agencies as part of
a 2001 lawsuit, said that "valley fill," a term used to describe the
mining debris, can cause "adverse environmental effects, as it
eliminates aquatic life that inhabits those stream segments."

An
EPA spokeswoman declined to address the contradiction, instead pointing
to a portion of Johnson's letter stating that the agency worked with
Interior to include requirements that "no mining activities may occur
in or near streams that would violate Federal or State water quality
standards."

But the agency has not released those requirements,
nor has it responded to questions about whether it will release
enforcement guidelines. Johnson's letter went on to suggest that the
rule will help meet President Bush's goal of promoting "the increased
use of clean coal technology in order to reduce our reliance on foreign
oil."

For its part, the Interior Department claims the new rule
will help protect streams because it asks companies to "minimize" the
environmental impacts of waste disposal. But environmentalists said
that nothing in the rule specifies how mining operations can achieve
that goal.

In October, a coalition of environmental groups met
with the White House Office of Management and Budget and DOI officials
and urged them to consider the government's own research before
finalizing the rule, warning that the proposed change was "inappropriate, unwise and illegal" (PDF).

Five days later, OMB met with members of the National Mining Association, a trade group that lobbies on behalf of mining companies.

A spokesperson for OMB did not respond to questions about the meetings.

Carol
Raulston, spokeswoman for the National Mining Association, said she
could not provide details about the OMB meeting. She said the
association strongly supports the rule because mountaintop removal is
an important way to supply America's energy needs and preserve safe
jobs for Appalachian states where mountaintop mining takes place.

"You
cannot access that coal by going underground in a traditional way. It's
not safe for miners; it's not a safe mining practice," said Raulston.
"Proper engineering of valley fills can be done in a way that does not
harm water."

Previously, mining companies had to obtain a permit
to dump mining waste into streams. But the coal-mining industry and the
Bush administration have waged a years-long campaign to eliminate the
permits. The permit rule wasn't always enforced: One government study
shows that 535 miles of streams were buried between 2001 and 2005.

Environmental
groups that were successfully using the rule to challenge mountaintop
removal in court were also hoping that the Obama administration would
actually enforce permitting. Now, they are scrambling to determine
their next steps.

"The simplest thing I can say is that we are
going to work with local, state, regional and national government
groups and look at what we can do in the courthouse," said Vivian
Stockman, of the Ohio Valley Environmental Coalition, which lobbied
against the rule change. "We are going to try to influence the incoming
administration and look at our legal options. It just seems that EPA
can't concur with this rule change and follow its own duties."

The
Obama transition team had no comment. Previously, Obama has called for
"more environmentally sound ways of mining coal than simply blowing off
the tops of mountains."

The rule change will be in effect by the
time he takes office. Overturning it would require starting the
rulemaking process all over again, which could take years and prompt
legal challenges.

"The Obama people could propose to rescind or
modify the rule," said David Vladeck, an administrative law professor
at Georgetown University. "But every coal company is going to fight it
tooth and nail. It's going to be a huge rumble."

Valley
fills occur in steep terrain where there are limited disposal
alternatives. Mountaintop coal mining operations are concentrated in
eastern Kentucky, southern West Virginia, western Virginia, and
scattered areas of eastern Tennessee. In 1998, the US Department of
Energy estimated that 28.5 billion tons of high quality coal remain in
the Appalachia coal mining region. Restricting mountaintop mining to
small watersheds could substantially impact the amount of extraction
that takes place.

Programmatic Environmental Impact Statement

EPA,
in conjunction with the US Army Corps of Engineers, the US Department
of the Interior's Office of Surface Mining and Fish & Wildlife
Service, and the West Virginia Department of Environmental Protection,
prepared an environmental impact statement (draft EIS | final EIS) looking at the impacts of mountaintop mining and valley fills. This was done as part of a settlement agreement in the court case known as Bragg v. Robertson, Civ. No. 2:98-0636 (S.D. W.V.).
The purpose was to evaluate options for improving agency programs that
will contribute to reducing the adverse environmental impacts of
mountaintop mining operations and excess spoil valley fills in
Appalachia. The geographic focus was approximately 12 million acres
encompassing most of eastern Kentucky, southern West Virginia, western
Virginia, and scattered areas of eastern Tennessee.

Environmental Impacts

Based
on studies of over 1200 stream segments impacted by mountaintop mining
and valley fills the following environmental issues were noted:

an
increase of minerals in the water -- zinc, sodium, selenium, and
sulfate levels may increase and negatively impact fish and
macroinvertebrates leading to less diverse and more pollutant-tolerant
species

wetlands
are, at times inadvertently and other times intentionally, created;
these wetlands provide some aquatic functions, but are generally not of
high quality

forests may become fragmented (broken into sections)

the regrowth of trees and woody plants on regraded land may be slowed due to compacted soils

grassland birds are more common on reclaimed mine lands as are snakes; amphibians such as salamanders, are less likely

valley fills are generally stable

cumulative environmental costs have not been identified

there may be social, economic and heritage issues

Healthy Waters Priority

EPA's
mid-Atlantic regional office has incorporated a new approach to
maximizing efficiency in watershed protection and restoration by using
the best available data to sharpen our focus and appropriately allocate
and mobilize resources. Mining is one of 4 Priority Sectors in this Healthy Waters Priority
approach. Efforts are being made to protect healthy waters and restore
degraded waters within watersheds affected by coal mining.